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It was almost twelve months back that the Government of China announced the onslaught of a novel strain of the SARS (SARS-CovV-2). Twelve months since then, the virus has immobilized and crippled the entire world. By December 04, 2021 Covid-19 has already affected 85,611,594 people world over.[1] The pandemic has not only caused a major health concern, it has also practically brought the global economy to a halt. The health risks associated with the virus forced most of the governments to call for a virtual shutdown of movement of people and goods. Naturally the economic costs associated with such shutdowns have been enormous. The Organisation for Economic Cooperation and Development (OECD) has described the Covid-19 as "the greatest economic, financial, and social shock of 21st century".[2] International Monetary Fund characterised Covid-19 as the "humanity's darkest hour since the World War II"[3].
The deadly virus has the capacity to infect a person without manifesting visible symptoms during the incubation phase of the infection which makes its transmission easy through to the unsuspecting people. This long asymptomatic incubation period of the virus (sometimes up to 14 days) allowed it to rapidly spread from one person to another allowing an infected person to infect up to 2.24 to 3.58 people on average.[4]
Given the dire circumstances, the instinctive reaction of most countries was to stop the movement of people to restrict the viral transmission. However, the shutdowns that were put in place to prevent the spread of the pandemic arrested the economy growth much more than the transmission of the virus, as can be seen from the astronomical number of infected people.[5] The global GDP estimate for the fourth sector of 2020 is predicted to be 3% less than the GDP last year for the same quarter.[6]
The effect of covid-19 on the economy is not restricted to one sector. Tourism forms a critical part of economy globally, and it is also one of the most severely affected[7] economic sectors due to the pandemic. The UN World Tourism Organization[8] reported that 100% of global tourism destinations had introduced travel restrictions during the second quarter of the year 2020. Similarly the International Air Transport Association has reported that the airline revenues would drop by 50% compared to 2019[9]. In fact, it is estimated that the recovery in passenger number equal to 2019 may be achieved only by 2023-24[10]. The textiles, clothing, leather, and footwear sector also faced a lethal blow under the effect of Covid-19. It has been estimated by the European Union that the textile sector is set to face a 50% drop in its sale in the year 2020.[11] The automobile sector which has one of the largest share of contribution in the economy, with its annual turnover equal to the world's sixth largest economy[12] is also battling great uncertainty owing to the pandemic. The industry is currently experiencing a sharp drop in its supply and demand.[13]
Likewise the insurance sector is also expected to bear the brunt of the economic slump caused by the pandemic. The sector will not only face the loss of revenue due to the effects of shutdown but also because of low demand of insurance coverage for event/travel cancellation etc.[14] The insurance companies also invest considerably in the equity and fixed income markets and will have to come to terms with the losses in equity markets & bond impairments.[15] The losses faced by the insurance industry will significantly impact the business of insurance companies especially in responding to various insurance claims. Apart from focussing on improving its business prospects, the sector also needs to come up with innovative solutions to expand its coverage with respect to epidemics and pandemics.
The pandemic has not only affected economic activity but has also adversely affected the performance of commercial and contractual obligations.[16] The global shutdown caused many enterprises to suspend their business altogether and also lead to postponement or even cancellation of contractual obligations. The enforcement of these contracts will depend on the factual circumstances and the legal requirements as mentioned in the contract.
The pandemic has virtually made the enforcement of contracts either extremely onerous or completely impossible. While some people are facing extreme hardships in fulfilling their contractual and commercial obligations, others have been left completely handicapped. Such impossibility in fulfilling the contractual obligations may lead to a breach of contract unless the defaulting party can successfully claim the defence either under force majeure clause or frustration of the contract, or if the non-defaulting party waives the breach of contract. This dissertation will elaborate on the defences of force majeure and frustration of contract and will explore their application in the Covid-19 pandemic.
Additionally, given the challenges that companies face today in their functioning owing to a global disruption in supply of goods and services, may necessitate t taking steps that they may not take up under normal circumstances and that would not even be lawful under normal circumstances, such as a collaboration with their competitors. In this respect the responsibility of the competition authorities becomes much more pertinent so that the businesses do no engage in unfair market practices so that general public can be protected and the economy can recover in the longer run. Naturally the application of competition law in the current crisis is an additional challenge. In this dissertation we will also explore the role that the competition law and competition authorities have to play in the current pandemic to mitigate the shocks experienced by the economy world over.
A Force Majeure is a clause that depicts any particular circumstances or any event(s) that would be considered as force majeure events, conditions that would apply to the contracts, and the consequences that could occur of such event of force majeure.[17] The doctrine of force majeure is based on the rationale of impossibility[18] to perform the contract. The clause is applicable when any event is getting out of the control of the parties and parties are ready to prove that they have taken all possible actions to mitigate the impact of the event of force majeure. If any circumstance comes under the ambit of the cause of the force majeure, then the parties are relieved from performing the contractual obligations mentioned under the contract during the period when such event of force majeure continues.[19] The clause covers events like terrorism, hurricanes, explosions, plagues, Acts of God, war, earthquakes, acts of government, fire, or epidemics where parties mention their force majeure event or events that are not in the control of the parties[20].
Force majeure clauses are applicable only when the clause has been already included in the contract. Force majeure clauses are mostly worded like the following[21]:
In case of a contract that does not include a force majeure clause, then the parties become liable for such acts in which the performance of obligations becomes possible for the parties. This clause is very important for businesses as it makes the parties free from their respective responsibilities which are performed under the contract.[22] Force majeure concerns itself with the epidemics and pandemics which can also cover Covid-19. Many Force majeure clause do not contain References of diseases, pandemics, or epidemics. The law of force majeure from pre-coronavirus will be equally important after this pandemic.[23] The clauses of force majeure in commercial contracts protect the parties from performing the obligations that are outside of the purview of the parties.
Force majeure clauses are the clauses of the contracts which change the obligations of the parties in case of the occurrence of events of an extraordinary nature which is beyond the party's control which prevents the parties fulfilling their liabilities and responsibilities.[24] As per the drafting of the contract, clauses like force majeure clauses have several consequences which include foregoing performance of the contract, excusing delay in performing the contract, claiming an extension of the period for the enactment of the obligation of the contract, or giving the right of the party to terminate the contract[25]. As per the English and Scots law, force majeure is the contract creature and not the part of the common law. Therefore it is quite different from the other systems of law where force majeure is a codified concept and the courts also state that an event like Covid-19 is also considered as part of the force majeure event.
The force majeure clause functions to enumerate circumstances in which the parties can be excused from the performance of their contract. So if the parties do not perform their contractual obligations they will not be held liable for the breach of the contract. It establishes the circumstances and to the extent in which the parties can be absolved of their responsibility to fulfil their contractual obligation.[26] In Tandrin Aviation Holdings Ltd v Aero Toy Store LLC[27], "the parties must define for themselves what they will treat as 'force majeure' (in contrast to civil code jurisdictions, where this is often statutorily defined). They may list specific types of events (such as war, or strikes, or government intervention) and may in addition lay down criteria for recognising a force majeure event that is not listed (such as, 'any other causes beyond our control')".
Generally the parties define the categories to which they would like to restrict the application of force majeure to, like the acts of god, or actions of government, strikes, etc., however the Courts have enumerated that the categories will be given their natural and wide meaning and will not be restricted to the categories mentioned[28].
Further, in Tandrin[29], it was claimed by the defendant that "unforeseeable and cataclysmic downward spiral of the world's financial markets in 2008 had triggered a force majeure clause, which contained a list of events and concluded with the words, any other cause beyond the Seller's reasonable control". The court held that "the phrase should be read in the context of the entire clause: the list of events included, for example, acts of God, governmental actions and inability to obtain parts"; while the Court noted that there was no necessity that force majeure clause be limited to the categories preceding it, it ruled that " it was telling that there is nothing in any of those specific examples which is even remotely connected with economic downturn, market circumstances or the financing of the deal".
For the clause of force majeure to become operable, one of categories as mentioned for force majeure must have happened (eg. War, strike, or government intervention). Thus it is essential for application of force majeure that the circumstance that cause an impediment to the fulfilling of contractual obligations of the parties must necessarily be included in the contract. Secondly this event must have hindered the parties in the performance of their contract[30]. The performance of the contract must be hindered beyond the control of the parties[31]. Additionally it is important that the parties could not have taken any reasonable steps to alleviate the circumstances and to perform the contract[32].
To sum up, there are four essential criteria[33] for an even to qualify as a force majeure event, these are:
The most common options available to the parties claiming force majeure clause are:
It has to be noted here that in case the parties have not included the force majeure clause, they cannot claim a benefit under it. However when the express provision of force majeure is not mentioned under the contract, but events similar to the ones governed under force majeure are present, then parties can apply the doctrine of frustration. Doctrine of frustration becomes applicable in the situations when the discharge of contract becomes physically impossible. In the case of Super Servant two[35], L.J. Bingham said:
"The essence of frustration is that it should not be due to the act or election of the party seeking to rely on it. A frustrating event must be some outside event or extraneous change of situation. A frustrating event must take place without blame or fault on the part of the party seeking to rely on it."
POSITION UNDER ENGLISH LAW
The UK government asked the contract parties through the guidelines issued by it in May 2020 to "act fairly and responsibly in performing and enforcing contracts that are materially impacted by the COVID-19 pandemic, especially in relation to making, and responding to, force majeure, frustration, change in law, relief event, delay event, compensation and excusing cause claims"[36].
Force Majeure, which means 'superior force'[37] in French, is actually not a creation of common law. The concept of force majeure has been adopted from the Roman law wherein "vis major" or "vis divina" covered unforeseeable and irresistible events that excused a party of performance.[38] Later this concept was adopted in civil law under the name of force majeure. Additionally while the French Civil Code contained a provision on the consequences of force majeure, it did not define the term. It was finally in 2016 that the French legislature gave the definition of force majeure by inserting Article 1218 in the Civil Code[39]:
"In contractual matters, there is force majeure where an event beyond the control of the debtor, which could not reasonably have been foreseen at the time of the conclusion of the contract and whose effects could not be avoided by appropriate measures, prevents performance of his obligation by the debtor. If the prevention is temporary, performance of the obligation is suspended unless the delay which results justifies termination of the contract. If the prevention is permanent, the contract is terminated by operation of law and the parties are discharged from their obligations under the conditions provided by articles 1351 and 1351-1 [dealing with impossibility of performance]"
The traditionally held view of English law has been very strict regarding contractual liability wherein the parties could not be excused from the performance of their contractual obligation even if the performance had become completely impossible. However the parties were allowed to prove the occurrence of certain event that would discharge their obligations. The modern concept of frustration of contract was developed by Blackburn J. in the case of Taylor v Caldwell[40]:
"in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance."
In this case the plaintiff and the defendant had entered into a contract in which the plaintiff had contracted to host concerts at the music hall owned by the defendant, but the hall was destroyed in the fire before the concert. Here the court held that parties were discharged from their obligations due to "the impossibility of performance arising from the perishing of the person or thing".
Hence the doctrine of frustration is an exception to the doctrine of frustration of contracts. Under the doctrine of absolute contract[41] the contracting parties are required to perform their obligations under the contract even if the performance has been made impossible by a supervening event that is beyond the control of either of the parties[42].
Of the oldest English cases that used the term "force majeure" are Lebeaupin v Crispin[43] and Matsoukis v Priestman & Co[44]. Since it is a contractual term and not a doctrine or principle of common law, it is essential that the parties looking to claim under force majeure must have included it in their contracts, otherwise it cannot be claimed.[45]
It is customary for the courts of England to apply the contracts rigidly, as per the wordings and the freedom given to the parties on terms that fit accordingly. In various circumstances, the frustration doctrine of English law may provide relief where it is not provided by force majeure. In cases where performance of the contract is impossible or illegal to perform then the contract is treated as frustrated and allowed to be set aside.[46]
In the upcoming part of this dissertation will explore the application of force majeure and its implications on the businesses and on their contractual obligations in the Covid-19 pandemic.
The effects of Covid-19 will be disastrous for most of the business enterprises in 2020. However a core issue affecting these businesses is the fulfilment of their contractual obligations. Since the pandemic has affected the entire global supply network adversely it is not a surprise that the fulfilment of many contractual obligations have either been delayed or become impossible.
FRUSTRATION OF CONTRACT
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The concept of frustration of contract governs the situations wherein the performance of a contract becomes impossible. It is a well-recognised common law theory that discharges the parties from fulfilling their obligations under the contract. Therefore the legal consequence of frustration of a contract is to bring an end to the contract and hence to the legal obligations of the parties associated with such contract. This effectively means that none of the parties will be held liable for a breach of contract.
Frustration of contract covers situations when after the formation of the contract an even occurs which makes it "physically or commercially impossible" to perform the contract. Such an event also "changes the obligation to one that is radically different" from that which was undertaken by the parties, and it would be "unjust" to hold parties liable to such an obligation.[47]
In the case of Davis contractors[48], the Court concluded:
"Frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni - it was not this that I promised to do."
The frustration of contract covers all those circumstances wherein due to the presence of such supervening event the discharge of contract becomes impossible. It is not because of actions of the parties that the discharge has become impossible. It is only because the circumstances that are beyond the control of either parties that the discharge of contractual obligations has become impossible, or the performance of contractual obligations has transformed so drastically that it was not even undertaken by the parties to start with.
In the Sea Angel[49] it was noted that "the doctrine of frustration is not to be lightly invoked…there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances." This was reiterated in the recent decision in Canary[50]. In this case, it was held that the Brexit was not a circumstance that could frustrate a 25 years lease by the European Medicines Agency. The court noted that even though Brexit itself was not a foreseeable circumstance, the parties could very well have foreseen that the European Medical Agency might have left the Europe before the term of the contract and "the EMA had assumed the risk of taking on a 25 year lease without a break clause in return for inducements which would not have been available had a break clause been included".
The benchmark to claim successfully under the frustration of contract has been purposefully kept high so that the parties do not excuse themselves from fulfilling their obligations if the performance became tougher than expected.
Hence "mere change in the degree of difficulty or expense due to such causes as increased wages, prices of raw materials, or costs of construction, unless well beyond the normal range, does not amount to impracticability since it is this sort of risk that a fixed-price contract is intended to cover."
"A frustrating event is most likely to occur where the specified subject matter of the contract has been destroyed or is otherwise unavailable"[51] or "has deprived the parties of their common commercial purpose".[52]
Another important element to claim under frustration of contract is presence of events that were not foreseen by the parties at the time of formation of contract.
Additionally, "a party cannot rely on self-induced frustration, namely 'frustration due to his own conduct'. It will be self-induced when caused by a breach of contract, or where an act of the party relying on frustration broke the chain of causation between the alleged frustrating event and non-performance".[53]
If the elements of frustration of contract are established then the obligations of the parties under the contract are automatically discharged and none of the parties are held liable for a breach of contract.
A contract may be frustrated for a number of reasons, some of these are:
In the case of Krell v Henry[54], one of the most important case in the development of clause of force majeure, the claimants had hired the rooms for the only purpose of watching King Edward VII's coronation. And therefore when the purpose itself was frustrated due to the postponement of King's coronation, the contract had been effectively frustrated.
On the other hand in the case in the case of Herne Bay Steam Boat Company v Hutton, according to the facts of the case, a steamship had been hired for the purpose of viewing a Royal Naval review and for "a day's cruise around the fleet". Even though the naval review was cancelled, the contract for hire was not frustrated.
The condition of supervening illegality comes into picture when a change in law has made it unlawful for either of the parties to perform their obligations under the contract.
In the case of Denny, Mott & Dickinson v James Fraser[55]: "It is plain that a contract to do what it has become illegal to do cannot be legally enforceable. There cannot be default in not doing what the law forbids to be done."
In the case Metropolitan Water Board[56] the facts convey that shortly before the beginning of the World War I the parties had entered into contract for construction of a reservoir within six years. However in 1916 the contractors were sent a notice to stop the construction as per directions of Ministry of Munitions. But the water board argued that the contract was still binding. Here the House of Lords held that the contract had become different from the one that was originally entered into by the parties. And since the contract was not the same anymore it had become frustrated by such effect.
The performance of a contract may also be frustrated by delay. In the case of Pioneer Shipping Ltd v BTP Tioxide Ltd[57], Lord Roskill observed:
"Whether or not the delay is such as to bring about frustration must be a question to be determined by an informed judgment based upon all the evidence of what has occurred and what is likely thereafter to occur. Often it will be a question of degree whether the effect of delay suffered, and likely to be suffered, will be such as to bring about frustration of the particular adventure in question."
It must be noted here that the delay must be so abnormal that it was not reasonably anticipated by the parties in question.[58]
Hence if a party wants to claim protection under the doctrine of frustration due to the disruption caused by impact of pandemic it will have to prove that the pandemic made "physically or commercially impossible" for the party to discharge its contractual and commercial obligations as undertaken by the party in the contract, or if the disruption caused by the pandemic "radically changed" the obligation of the party from the one that was undertaken by it at the time of formation of the contract[59]. So if the pandemic only added a mere added difficulty on the parties to fulfil their obligations, that alone will not cause a frustration of the contract. To determine if the obligations of the party have become "radically different" from the one that they had undertaken will depend on the facts of the case and will be determined on a case to case basis. It may be possible that the pandemic has made the obligations more inconvenient or burdensome but the obligations still remain the same, in that case the contract will not held to be frustrated. In the case of Davis contractors, the work undertaken by the parties was supposed to take only 8 months for completion but took 22 months instead owing to the bad weather. It was health that these facts did not cause a frustration to the contract-"the job proved to be more onerous but it never became a job of a different kind from that contemplated".[60]
COVID-19 UNDER FORCE MAJEURE
In the case of Hirji Mulji, Lord Sumner put that force majeure is a device "by which the rules as to absolute contracts are reconciled with a special exception which justice demands."[61]
In recent times[62] force majeure clause was invoked by the steel & mining company ArcelorMittal[63] when an expansion project to triple the iron ore production in Liberia was suspended owing to the Ebola pandemic in Africa.
The application of the force majeure depends upon the definition of the force majeure event and also depends upon the specification given by the contracts such as global health emergencies, pandemics, and epidemics that are capable enough to trigger relief under force majeure. If the contract does not mention specifically about the global health emergencies, pandemics, epidemics, or any other similar events that would be covered under force majeure then the parties are not able to capture Covid-19 under the provisions of the contract[64]. Actions like mandatory closures of office, quarantine, travel bans, and lockdowns of cities fully or partially or intervention of government are considered to be outside the purview of the parties. This depends upon the party's intention while entering into the contract. If the definition of the force majeure excludes the events that could be foreseen reasonably, it is argued by the other party such as Covid-19 fall outside the protection provided by the force majeure to the outbreaks of like viruses that covered before like SARS. It is difficult to prove about the similar viruses that were unforeseeable, but certain facts such as unprecedented lockdowns linked with Covid-19 are sufficient to differentiate from other outbreaks of viruses. However if the contract includes the event of "pandemic" as a qualifying even for invocation of force majeure then Covid-19 may be covered under force majeure especially because the World Health Organisation has defined the covid-19 as a "pandemic"[65].
In case, if there is no clause of force majeure then the affected party has to focus on the other contractual provisions to get possible ways to get out of its problems. If the contract does not depict any of the routes then it may be possible to depend upon the doctrine of contract frustration[66]. It is difficult to depict that there is a frustration of contract and it is an unforeseen event it is outside the purview of the parties and made impossible to perform the contract or covert the performance in such a way that it would unfair for the parties to perform the obligations mentioned in the contract. The extreme situation when the court can announce the contract is frustrated is that in a case when the war was broke out and the work was banned by the government and sold or take hold of the essential equipment's.
Declaring Force Majeure
For declaring the force majeure, it is crucial to prove that there is something hindered, prevented, or delayed in performing the contractual obligations, due to an event occurs which falls within the purview of the contract defines as a force majeure event. To mitigate risk all the necessary actions are taken by the parties and its non-performance is only because the situation s outside the party's control[67]. If these conditions are not fulfilled, then the other party has the right to present a counterclaim due to performance delay which results in contract violation because the pre-requisites to advantages from the provisions of the force majeure were not fulfilled. In case if there is no clause of force majeure or the Covid-19 pandemic impact is outside of the scope and the parties may need to deliberate that whether the contract is terminable by law operation such as frustration. The application of frustration law applicable where occurring events result in a situation which is fundamentally different from the party's observation of what is made. However, frustration doctrine is rarely available in practice and is unlikely to apply where delayed in performance. This is due to courts and tribunals entails the parties to establish something akin to performance impossibility to find that frustration occurred. The effect of the force majeure clause will suspend the performance of the obligations of the affected party while the force majeure event continues. After the event is over, parties can perform their responsibilities as they intended originally[68]. On the contract suspension, some contracts consist the time limits, and the non-affected party consists of the rights to terminate the contacts in case of non-performance of the obligations. Due to the event of force majeure, it is impossible to make the party physically or legally perform various types of obligations of the contract.
Under English law, force majeure allows the parties to evade their obligations of performance in some extreme circumstances as mentioned under the contract[69]. As per English law, clauses of force majeure are included in long term contracts like the parties to take a break in the obligations of performance or to cancel the contract in various circumstances, such as in case of natural disaster, an act of God, or war which legally excuse their contract performance. Further, most of the clauses of force majeure requires the party who are not able to fulfil its accountabilities. For instance, in Seadrill Ghana Operations Ltd v Tullow Ghana Ltd where Tullows[70] is not allowed to invoke the clause of force majeure. In this case, judge states Tullow was not allowed to depend upon the provision of force majeure to discharge the agreement because, although the moratorium was a force majeure occasion it is the contractual duty of Tullow to use its reasonable endeavours to evade the moratorium to performing its responsibilities to deliver instructions of drilling. Tullow was not able to utilise the clause of force majeure because it is not able to use reasonable endeavours to circumvent the event effects. Similarly in the case of Lakeman v Pollard[71], Supreme Judicial Court of Maine held that if the performance of the contract had become impossible due to the epidemic then the defendant's liability with respect to the contract could be discharged.
From the above discussion, it concludes that the implication on the business due to Covid -19 are fully recognised. This discussion makes it clear that businesses can claim the clause of force majeure to prevent the defaults in their contractual obligations arising due to the regulatory direction or the laws passed by the government which makes it difficult to fulfil its obligations. However two things are required to claim 'force majeure' clause. First, covid-19 must be included under the definition for 'force majeure' in the contract, second, the contractual obligations of the parties must be "hindered" or "prevented" or "disrupted" from performing their obligations[72]. Further, a business should focus on the changes under Covid-19 and it is crucial to take all necessary actions to reduce its impact on the business functions with the help of the force majeure clause.
The International Monetary Fund (IMF) has forecasted that the global economy is expected to go through its worst recession in 2020 since the Great Depression, even exceeding the one experienced during the 2008-09 financial crisis.[73] The IMF predicts that the global growth will shrink down considerably owing to the shutdown introduced by the pandemic.[74] It is estimated that the global growth will be -3.0% in 2020 and the growth in European Union will be at -7.1%.[75] The pandemic has introduced countless uncertainties right from disrupting the global supply of goods and services, to causing an unprecedented shutdown of global transportation services. The pandemic has halted the businesses in a manner that had not been anticipated ever.
This has also caused an apprehension in the minds of regulatory authorities as well and has definitely magnified their jobs and responsibilities. One of these are the competition authorities. The application of the competition laws in the unprecedented times of such a pervasive health crisis which has not only permeated the goods and services supply markets but also seeped into the labour market, hospitality sector, education sector, tourism sector, aviation sector, transportation sector, etc. is a challenge that needs and deserves a separate analysis in its own right.
The competition authorities need to ensure that a level playing field is maintained even during these times so that every business and enterprise gets an equal opportunity to target and achieve economic recovery in their business prospects. In the recent times, the competition authorities have allowed the businesses to come together and collaborate to keep the market functioning, and to ensure that there is not shortage in supply of goods and services.[76] It is understandable that given the crisis the competition authorities may loosen their grip by allowing collaboration between the businesses, but it is imperative that the authorities make sure that the big players in the business do not exploit this leeway to commit anti-competitive acts behind the veil of the pandemic. The relevance of competition authorities have not faded, in fact their role in the current situation has become even more pertinent. It is essential that the authorities ensure that the businesses do not flout the competition rules through excessive pricing, profiteering, improperly colluding, or by engaging in any other anti-trust behaviour that may cause any undue disadvantage to the customers and general public.
The competition authorities need to consider how much relaxation should be allowed to the businesses so that no anti-competitive activities are committing by the businesses under the garb of economic crisis. The competition regulatory bodies have also announced and made known to the public and businesses alike that no automatic suspension from the application of competition laws can be allowed due to a public crisis. The authorities have made it clear publicly that the business enterprises will not be allowed to engage in anti-competitive practices during the pandemic and the authorities will ensure this by remaining vigilant and keeping an eye on the activities of the businesses. The authorities in Switzerland have warned that "private companies still have to observe antitrust law, even if the crisis can lead to an increased need for cooperation", and that "the overall economic situation must not be misused to form cartels and to agree prices".[77] Similarly the authorities in the US have stressed that "they will not hesitate to hold accountable those who try to use the pandemic to engage in antitrust violations".[78]
The authorities have encouraged a closer collaboration and cooperation between the food, retail, and pharmaceutical businesses to ease the affected supply chain during the pandemic.[79] The authorities have given these relaxations given the present crisis that the world finds itself in. Given the crisis and the economic downturn as a result of it, it is expected that many businesses would want to collaborate with each other to overcome the current hardship that they find themselves in, however competition laws do not have a favourable view of collaboration between the competitors that may restrict the competition. In fact many of the countries like Greece, France, Poland, Portugal, and the United Kingdom have already announced that they will ensure that the competition laws are properly followed[80].
The government in UK also came up with some orders to provide certain critical sectors an exemption from the purview of competition law to help them deal with the crisis better. These orders will remain in place till an order/notice is passed by the Secretary of State in this regard. Once such an order is passed the businesses are expected to end all of such arrangements that were especially allowed only for the period of pandemic within 28 days.
One of the first orders by the UK government on application of the competition law was released on the 19th March 2020, wherein it announced that the government would adopt a temporary relaxation of competition law applicable to the retailers for the period of pandemic. The legislation was eventually published on the 27th March 2020. The order allows the supermarkets and retailers to undertake various measures to tide over the pandemic like sharing data with each other on "the levels of stocks, cooperating to keep shops open or share distribution depots and delivery vans, coordinating the range of groceries being or to be supplied by suppliers or retailers, and coordination on supplying groceries to consumers in areas of the UK that are particularly vulnerable to shortages of groceries". The logistics service providers have also been allowed to exchange information on labour availability and storage space. It is to be noted here that the exemption has been provided only to avoid any disruption in supply of commodities & goods to people. However the order was revoked on 8 October 2020.
Additionally, the Competition & Markets Authorities (CMA) also announced a Covid-19 taskforce "to advise the Government on how to ensure competition law does not stand in the way of legitimate measures that protect public health and support the supply of essential goods and services, and to advise further on policy and legislative measures to ensure markets function as well as possible in the coming months".[81] In June the CMA also lunched proceedings against 4 pharmacies under the Competition Act 1998 for selling hand-sanitizers at exorbitantly high prices. The investigations were however closed after the CMA ruled that the said practices of the pharmacies were unlikely to infringe competition law.[82]
The CMA recognising that the current extraordinary situation may require the businesses to collaborate for supply of goods and services, came up with 6 conditions, upon the fulfilment of which the businesses will not be liable to the authorities for collaboration. These are: "The measures to coordinate action taken by businesses are temporary; The measures are appropriate and necessary to avoid a shortage, or ensure security, of supply; The measures are in the public interest; The measures contribute to the benefit or wellbeing of consumers; The measures deal with critical issues that arise as a result of the COVID-19 pandemic; and The measures last no longer than necessary to deal with these critical issues".[83]
On the 27th of March 2020 the UK government published another order this time suspending the application of competition laws on business competitors to allow smooth ferry transport between the mainland and Isle of Wight. Further an order published on 27 March 2020 published the Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 that relaxed the application of competition law on National Health Services (NHS). On the 17th April 2020 another notification was released that relaxed the competition laws for the dairy industry for the period of pandemic until further notice. The government also passed the Dairy Produce Order on 1st May 2020 which "excluded the application of the UK competition rules to specific types of cooperation in the dairy sector, including collecting and sharing information on limited matters, such as surplus milk quantities and stock levels to address supply chain issues caused by the COVID-19 pandemic". The order specifically lists out the permitted cooperative behaviour, and if any dairy producers enters into an agreement mentioned under the order, they have to inform the Secretary of State of such an arrangement in order to claim exemption.
Additionally, the International Chambers of Commerce also came up with its recommendations for governments and competition agencies "to minimise the negative economic crisis on economies, markets and consumers in the short to medium term, and, more fundamentally and to protect the structure of economies and the competitive fabric of markets in the longer term to confront the economic challenges that lie ahead after the immediate consequences of the crisis have abated".[84]
While applauding the seriousness with which the competition agencies were providing guidance to businesses in responding to the crisis of the Covid-19, the ICC also noted that the operation of competition rules were especially significant during the time of pandemic so that the businesses did not exploit the public by engaging into price gouging and other anti-competitive practices.[85] At the same time the ICC also noted the exceptional circumstances that the businesses are operating in, and added that if the competition rules were applied carefully in accordance with these exceptional circumstances, it could play a valuable role in facilitating the economic recovery of the businesses. However while noting the risk the businesses were facing due to pandemic, which could also potentially lead to an economic breakdown of many industries thereby leading to erosion of "long-term competitive nature" of the markets, the ICC also pointed that it was not favour of competition authorities relaxing the application of competition laws. It maintained that the competition authorities should continue to enforce the competition laws vigorously to safeguard the long-term competitiveness of the market. At the same time the ICC recommended that the competition authorities take into consideration the present realities of the world we inhabit today and accordingly allow the cooperation between the companies.[86] Especially for the businesses wherein the demand has fallen significantly, it suggested that the agencies allow collaboration between the competitors wherever necessary, like in the area of food, medicines, basic transport, and other retail goods. Elaborating on the same point, the CCI suggested that the government release clear guidelines on when the businesses can cooperate to combat the effects of the crisis. It suggested that "such guidance may for example relate to joint research to combat the virus, the production of protective equipment or other medical equipment, supply chain problems, the exchange of (competitively sensitive) business information, and the work of trade federations". The CCI also suggested for the governments to make provisions for availability of funds to overcome the consequences of the crisis. It also suggested that the provisions be made to allow government's intervention whenever needed without much delay. The CCI also remarked upon the importance of State's assistance in the form of financial aid to safeguard not only the supply of goods and services but to also ensure that the livelihoods of the business owners is protected.
Additionally it also suggested that the governments allow some relaxation in the assessment of competition laws while overseeing certain kinds of collaboration between the businesses. It also suggested that the competition authorities issue clear guidelines to support the economic survival of the business entities. It emphasized that "these guidelines could provide materiality thresholds or caveats to make sure that businesses can benefit from them where appropriate but that no businesses can take advantage of them. It is of paramount importance that this is done in a way that would confer legal certainty to undertakings and provide adequate protection against private litigation claims".[87] It also suggested that the governments provide agencies with enough funding and resources to deal with the present crisis effectively.
Further the ICC also noted that the guidelines from the government should also clarify the situations wherein the businesses may be exempted from the application of competition law while securing the supply of certain important goods and services. Additionally it also noted that it "supports enhanced coordination among competition agencies in different jurisdictions to ensure consistency in the approach vis-à-vis the assessment of concentrations involving distressed companies, for example on how competition agencies intend to interpret or adjust the failing firm doctrine in these times of distress (including updated guidance)". Finally it noted that "there is a role for competition agencies and supra-national international bodies (such as the ICN and the OECD) to facilitate the adoption of best practices across the authorities. This will be key in achieving greater convergence on the treatment of different forms of collaboration and assisting international businesses which need to assess their competition law risk in multiple jurisdictions within very short periods of time".[88]
Further, it is also a concern for the authorities that the businesses may acquire their struggling rivals to increase their own market share. The authorities have announced that they will make sure that they weed out any such anti-competitive behaviour that may be taken by the business entities under the garb of pandemic. The competition law restricts such acts because acquisition of the competitors by the companies lead to reduced innovation, fewer competition, insufficient options to the customers and consequently higher prices.
The Canadian Competition Bureau has also announced that it will stay vigilant to prevent any anti-competitive acts by the businesses and in a notification released in April 2020 noted that the process for assessing a failing firm claim will be analysed as per the provisions of the Competition Act and no leeway or relaxation in the application of laws will be provided by reason of the pandemic. Therefore any mergers by businesses even if backed by a failing firm claim will be put under required examination & inspection by the competition authorities as per the Act[89].
In Ireland, wherein the failing firm claim can be an acceptable defence is not easy to raise either. "The key for the merging parties in using this defence is to ensure that they have sufficient evidence to provide to Irish competition authorities to demonstrate the target's ailing position, and also the appropriateness from a merger control perspective of the buyer in seeking to acquire the target."[90] Thus it can be concluded that certain forms of cooperation that do not represent a collusion between the competitors to defraud the customers should be allowed given the current disruption in supply of goods and services. Such collaborations do not necessarily restrict competition, in fact they help in easy and efficient access of goods and services to the general public. Thus any such collaboration should be only limited to what is essential for the businesses to manage and tide over the current crisis. The objective of such a collaboration should be to ensure an efficient delivery of goods and services to the public. The OECD has also stressed that "mere existence of an emergency does not give them 'carte blanche' for engaging with each other in order to overcome COVID-19 challenges".[91]
Theoretically it has been suggested that a relaxed application of competition laws may help the businesses and general public alike, however instances from past show that this assertion is not correct.[92] It is essential that the competition authorities uphold the competition laws and do not ignore their breach as reducing the enforcement of competition law especially during an economic crisis does not support the long term recovery of the economy. It has been reiterated in the US that the laws of competition that are applied during an economic expansion should also be applied during an economic expansion without any relaxation in their enforcement.[93] It has been observed repeatedly that a relaxed enforcement of competition law does not have any advantage over the economy in the medium or long term, and such a move is counterproductive instead.[94]
The unprecedented health crisis and economic emergency that the world finds itself in today needs innovative solutions from the businesses and competition authorities so that there is not any long term disruption in the supply of essential goods and services to the public. At the same time the governments and the authorities need to be mindful of the activities of the businesses and enterprises so that no anti-competitive acts are committed by businesses by taking advantage of the pandemic. The businesses should also ensure that they do not engage in any unfair practices to tackle the ill-effects of the pandemic on their businesses. In order to ensure this they should keep an eye on the notifications released by the government to gauge which actions are approved by the authorities and which ones are not.
The Covid-19 poses unique challenges because of the complexities and uncertainty it brings in with itself. As of now there is no estimate of when exactly we may get a respite from the virus and the world may return back to its old normal. The scientists have still no answers on how the virus introduced itself in human species. However the fight with the virus is on full swing with countries and their researchers racing against the time to make vaccines against this dreadful and fatal virus. The coronavirus is as much an economic crisis as it is a health crisis. The economic downturn that the world faced due to global shutdown of state borders and market places is no less than a catastrophe, and it may take a long time before we fully recover from it. Quite obviously the pandemic has also affected the discharge of contractual obligations of the parties. In these circumstances there is a need for businesses and authorities alike to take innovative and prudent decisions for the long-term recovery of the economy. Competition law enforcement is no exception to this disaster either. The authorities have been hustling to safeguard the market place for all the players and to prevent any anti-competitive practices. It is essential that the governments and authorities collaborate with each other to deal with the situation in the best way possible by taking along all the stakeholders.
CASES
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[79] Alan Davis, 'Coronavirus: Competition Law Enforcement after Lockdown' (Pinsent Masons, 06 May 2020) <https://www.pinsentmasons.com/out-law/analysis/coronavirus-competition-law-after-lockdown> accessed 04 December 2020.
[80] Christopher Thomas, Christian Ritz, Stefan Kirwitzke, & Raphael Fleischer, 'COVID-19 and Competition Law - Companies Must Not Quarantine Competition Law Compliance' (Competition Policy International, 02 April 2020) <https://www.competitionpolicyinternational.com/covid-19-and-competition-law-companies-must-not-quarantine-competition-law-compliance/> accessed 02 December 2020.
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